Month: September 2015

On 21 September 2015, Trindad’s Attorney General approved the extradition of former FIFA vice president, Jack Warner, from Trinidad to the United States. Two days later, on 23 September 2015, Switzerland’s Federal Office of Justice (FOJ) granted a US request to extradite Rafael Esquivel, former president of the Venezuelan FA and executive member of the South American Football Confederation (CONMEBOL).

On 21 September 2015, the Attorney General of Trinidad and Tobago, Faris Al Rawi, signed Authority to Proceed (‘ATP’) documents in the case of Mr Warner, which will facilitate his extradition to the US.

Mr Warner is accused by US authorities of racketeering, wire fraud, money laundering, bribery, and was arrested on a provisional warrant in May 2015. Mr Warner is allegedly involved in a central element of the FIFA case: a $10m payment from South African football officials to the confederation for North and Central America and the Caribbean (CONCACAF), linked to Mr Warner’s support for South Africa’s bid to host the 2010 World Cup. He denies any wrongdoing.

Mr Warner’s defence team had requested that Deputy Chief Magistrate Mark Wellington discharge him, on the basis that Mr Rawi missed a deadline on 16 September 2015 for signing the ATP. However, lawyers representing the State of Trinidad and Tobago successfully argued that there was no reason for discharging Mr Warner, since the ATP documents are now signed.

The hearing has been adjourned to 25 September 2015, after Mr Warner’s lawyers asked for more time to review the documents and the submissions made by the lawyers representing the State.

Rafael Esquivel

On 23 September 2015, Switzerland’s FOJ approved the extradition to the US of Venezuelan citizen, Rafael Esquivel. The press release is here.

Mr Esquivel is accused of receiving bribes worth millions of dollars in connection with the sale of marketing rights to the Copa America tournaments in 2007, 2015, 2016, 2019 and 2023. He has 30 days to lodge an appeal.

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On 19 September, it was reported that the police authorities in South Wales are working with officers in the Republic of Ireland, with a view to speaking to David Ellis, in connection with the murder of a Swansea resident, Alex Warburton. A report is here.

Mr Ellis lodged with Mr Warburton, in Sketty, Wales. Mr Warburton has not been seen since 31 July 2015. An appeal for information was made after Mr Warburton was reported missing, on 2 August 2015. On 20 September, South Wales Police confirmed that an unidentified body had been found in Dolwyddelan, in north Wales.

On 18 September 2015, Garda officers confirmed that Mr Ellis was arrested in Galway, Republic of Ireland, and detained in custody. Although the details are not clear, it appears that Mr Ellis has not yet been charged with an offence in Wales, and the co-operation between police in both countries is taking a form of mutual legal assistance.

However, a spokesperson for South Wales Police has stated: “David Ellis has been arrested in Ireland. We are liaising with the Garda in relation to his extradition back to the UK.”

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On 18 September 2015, the Environmental Protection Agency (EPA), in the United States, announced that Volkswagen (VW) had violated the Clean Air Act, by unlawfully installing software into diesel cars between 2009 and 2015 which allowed cars to flout emissions tests. It is alleged that cars emitted toxic gases of up to 40 times permitted levels. A report is here.

BMW is also embroiled in the scandal, with the International Council on Clean Transportation (ICCT), the NGO that ran the emissions tests which ultimately led to the discovery of the so-called ‘defeat devices’ in VW cars, revealed that a BMW X3 model exceeded European emissions limits by more than 11 times. The ICCT did not state the cause for the alleged problem. BMW denies any wrongdoing. A report is here.

Extradition from Germany

The case is still unfolding, and the legal ramifications remain unclear. However, in the event that the alleged rigging of VW emissions was conducted from abroad, namely Germany, where VW is headquartered, extradition proceedings, brought by the US, for those individuals concerned is a real possibility.

Extradition of German citizens to non-EU countries is prohibited by Article 16(2) of the Basic Law for the Federal Republic of Germany. The US authorities have, therefore, in the past, issued INTERPOL Red Notices, effectively preventing individuals from travelling outside their home country. Even if these individuals are immune from extradition from their country of citizenship (because that country does not extradite its own nationals), they are at risk of extradition from a foreign territory, if they travel and are subject to a Red Notice. With this prospect, it would not be surprising to see any charged individuals entering into a plea deal in the US, which would ultimately mean that any Red Notice would be lifted.

It also appears that authorities in the United Kingdom have opened an investigation into the matter, with the Transport Secretary, Patrick McLoughlin, confirming that the Vehicle Certification Agency is currently working with manufacturers “to ensure that this issue is not industry wide”.

If similar defeat devices are found to have been installed in cars in the UK, and charges are brought in the UK, extradition of executives from Germany to the UK is a possibility, through the operation of the European Arrest Warrant scheme.

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On 18 September, it was reported that Indian police have yet to arrest Ahmed Hussain, who faces dowry charges in India. The report is here. A previous blog is here.

Newnham Recorder Investigation

On 23 July 2015, the newspaper, the Newnham Recorder, provided Bengaluru city police, in India, with Mr Hussain’s address.

The newspaper reported that Bengaluru city police had confirmed to it that an INTERPOL Red Notice to secure Mr Hussain’s immediate arrest and extradition was being urgently sought in India. However, it appears that the Red Notice has not been issued and no arrest has yet been made.

No details of Mr Hussain have been published on the CBI website to date, which is understood to be the usual procedure for individuals subject to a Red Notice in the country.

The issuing of Red Notices for alleged dowry offences is not without controversy. The NGO, Marital Justice UK, for example, has campaigned against perceived injustices in Indian dowry law, and improper extradition requests that stem from such legal action.

Mr Hussain denies the allegations and has said that he will address the accusations within the next 12 months.

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On 17 September 2015, the High Court dismissed the appeal of Andrzej Komar against his extradition from the United Kingdom to Poland. The Court rejected Mr Komar’s grounds of appeal that the European Arrest Warrant issued for his arrest was ambiguous, that there had been culpable delay, erroneous treatment of Article 8 of the European Convention on Human Rights (ECHR) application, and on proportionality. The judgment is here.

Background

It is alleged that between 2 July 2001 and 1 April 2003, Mr Komar committed ‘offences against the credibility of documents’, in his capacity as the owner of the company, ‘PW Agrol Company’, through the issuance of 1780 VAT invoices for other companies.

In these invoices, Mr Komar allegedly ‘confirmed the untruth’ (in essence committed a forgery, although such terms are not used in the judgment), as to the fact of the sale of diesel oil, through which he made a financial gain of not less than 420,000 Polish Zloty. The maximum sentence for the offence is 12 years’ imprisonment. Mr Komar denies any wrongdoing.

Proceedings were commenced against Mr Komar in relation to the offences comprising the appeal in December 2005 (although Mr Komar was, in fact, sought as far back as the end of 2003 in connection with a separate set of proceedings relating to further seized VAT invoices). The decision to charge him was made on 30 May 2006. Proceedings in Poland were suspended in November 2006, as Mr Komar’s whereabouts were unknown.

On 30 August 2013, the Polish judicial authority was informed that Mr Komar was located in the UK. A domestic warrant was issued for his arrest and, on 20 December 2013, a European Arrest Warrant was issued for his arrest.

District Judge Blake, 21 May 2015

Mr Komar made three unsuccessful applications to adjourn proceedings, before District Judge Blake ordered his extradition on 21 May 2015. Mr Komar appealed the decision to the High Court, on the following grounds:

The EAW was not a valid warrant under s. 2 EA 2003. There is real ambiguity. The EAW had not been issued for the purposes of prosecution. Parts of the warrant indicated that it was an ‘accusation’ EAW; however, the EAW also indicates that Mr Komar is not to have appeared for the ‘trial’ and is referred to as a ‘sentenced person’ with pre-trial rights, suggesting that the EAW is consistent with a conviction warrant.

Passage of time under s. 14 EA 2003. Few measures were undertaken to locate Mr Komar in the UK, and a further delay in issuing the EAW occurred in 2013.

District Judge Blake did not conduct the balancing exercise for Article 8 ECHR.

Extradition would be disproportionate under s. 21A EA 2003: the allegations are 12 to 14 years old, Mr Komar was unaware that criminal proceedings had been initiated against him; Polish authorities have not yet sought to summon him to trial; the allegations do not suggest that he would be an immediate risk to the public requiring immediate detention; and he has an established private and family life in the UK where he has lived for 12 years.

The statement in the EAW that Mr Komar did not appear at the ‘trial resulting in the decision’ does not create ambiguity in light of the clear indication in boxes B and C of the EAW that Mr Komar has not been convicted. Taking a cosmopolitan approach, reference to ‘the trial’ was a reference to the decision of the Polish Court on 20 December 2013, which resulted in the domestic warrant being issued for Mr Komar’s arrest. Reference to ‘sentenced person was a perpetrator’ was a mistranslation.

The delays are troubling. However, the delay between 2003 and 2006 may be due to the fact that the VAT frauds were complex. Further, the issue for consideration is the effect of delay and the events which have taken place, had the request been made promptly. Kakis considered. Even if some delay is culpable, the high threshold for oppression has not been reached.

The balancing exercise for Article 8 ECHR was conducted, and Celinski applied. Delay is a factor; however, District Judge Blake concluded that the public interest in extradition outweighed the interference it would cause to Mr Komar’s private and family life. H(H) applied.

Extradition is proportionate in light of the seriousness of the conduct and the likely penalty on conviction. There has been a substantial delay but this is because the Polish authorities could not locate Mr Komar. Considering the issue of less coercive measures available to Poland, no such measures were available. First, temporary transfer would not work because Mr Komar would be arrested in Poland, pursuant to the domestic warrant in existence for his arrest in the country. Second, the possibility of removal of the EAW, subject to a security of 50,000 Polish Zloty, was not available because Mr Komar could not afford this sum. Third, a so-called ‘Iron Letter’, guaranteeing Mr Komar a safe passage to Poland for questioning, had been refused by the Circuit Court in Czestochowa, during the course of Mr Komar’s adjournment applications. Fourth, an order made under the Framework Decision, for a European supervision order as a less intrusive means of securing Mr Komar’s attendance at trial, is not able to delay extradition proceedings under an EAW. The Court added that the High Court is not able to question the reasons given by the judicial authority in the requesting state for rejecting less coercive measures.

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On 19 September 2015, it was reported that Raymond Nevitt, a British national who is currently being detained in South Africa, has cited the prospect of not receiving a fair trial in the United Kingdom as the reason for him absconding from the country in 2006. Mr Nevitt is currently contesting his extradition from South Africa to the UK. A report is here.

Background

Mr Nevitt was the one time director of Revelle Ltd, a company that sold computer components in the PC maintenance field.

On 3 October 2006, Mr Nevitt was convicted by Manchester Crown Court of conspiracy to fraudulently obtain government training grants. Mr Nevitt was sentenced to seven months’ imprisonment, substituted on appeal to 18 months’ imprisonment, and was disqualified from acting as a director for ten years. His Honour Judge Steiger granted Mr Nevitt pre-sentence bail; he absconded, allegedly fleeing the UK using an Irish passport, and was sentenced in absentia.

This conviction stemmed from a linked investigation into a broader, and larger-scale factoring fraud, first referred to the Serious Fraud Office in June 2001 (the ‘factoring offences’).

In March 2008, Mr Nevitt was convicted in absentia, for these factoring offences, again by Manchester Crown Court, on five counts of fraudulent trading, following an 11-week trial. Mr Nevitt was sentenced to 45 months’ imprisonment. In October 2008, Mr Nevitt was further ordered to pay a £1.6m confiscation order, by May 2009, or face an additional 10 years’ imprisonment.

It is believed that Mr Nevitt lived in Spain and Thailand before moving to South Africa, as early as 2010. On the 13 May 2015, Mr Nevitt was arrested in Cape Town, South Africa, for the purpose of extradition, having spent nine years as a fugitive. Mr Nevitt now faces extradition to the UK, to serve his sentence. The timetable for his extradition hearing is yet to be determined.

Summer 2015 Development

Mr Nevitt is reportedly in the process of challenging the constitutionality of South Africa’s Extradition Act, and the validity of notification from the Minister of Justice, Michael Masutha, that his extradition had been requested, as well as the validity of the arrest warrant issued in South Africa, and the lawfulness of his arrest and detention.

In an affidavit issued in those proceedings, Mr Nevitt maintains his innocence, and has stated: “Pending sentence I was released on bail and left the United Kingdom during about December 2006 in that I was of the view that I would not be afforded a fair trial in respect of the (alleged) offences,”.

Mr Nevitt has added: “I have not been accused of or charged with any crime in South Africa, and the warrant of arrest related solely to my extradition in respect of offences for which I have already been convicted in the United Kingdom.”

According to the report, Mr Nevitt’s challenge to the constitutionality of the Extradition Act also centres around the fact that the magistrate who issued the arrest warrant for his arrest locally was provided with limited information on Mr Nevitt’s legal circumstances and was, therefore, unable to exercise proper discretion, based on the conduct that he is alleged to have committed.

Accordingly, Mr Nevitt submits that the magistrate had no discretion, which runs contrary to the Constitutional right not to be deprived of freedom arbitrarily or without just cause.

On 17 September 2015, the Swiss Federal Office of Justice (FOJ) issued a statement confirming that the extradition of former FIFA vice-president, Eugenio Figueredo, from Switzerland to the United States, had been approved by the Swiss Federal Criminal Court. The press statement is here. A report is here.

The accusation against Mr Figueredo is that he received bribes, totalling millions of dollars, from a Uruguayan sports marketing company in connection with the sale of marketing rights to the Copa América tournaments in 2015, 2016, 2019 and 2023. He is also accused of forging medical reports in 2005 and 2006, with a view to fraudulently acquiring US citizenship.

The FOJ ruled that all of the conditions for extradition were fulfilled. Specifically, the principle of dual criminality was satisfied, with the charges punishable under the law of Switzerland and the United States.

Considering the potential Swiss offences, the FOJ stated that the bribery offence allegedly committed by Mr Figueredo would be deemed unfair practices under the Federal Law on Unfair Competition. The allegation that Mr Figueredo used forged medical reports as part of citizenship proceedings would be punishable under the Swiss Criminal Code, as document forgery.

Mr Figueredo has 30 days to appeal against the FOJ decision with the Federal Criminal Court, and five days in which to notify the FOJ of his intention to do so. A further route of appeal exists to the Supreme Court where there are indications of severe deficiencies in the foreign criminal proceedings.

Separately, in related FIFA developments:

On 14 September 2015, it was reported that Loretta Lynch, the US Attorney General announced that the US anticipates pursuing ‘additional charges against individuals and entities’. A report is here.

On 18 September 2015, the Office of the Attorney General of Switzerland (OAG) announced that it was ‘analysing’ claims that Jérôme Valcke, FIFA secretary general, was involved in ticket-touting at the 2014 World Cup. He was suspended on 19 September by FIFA’s ethics committee. A report is here.